The Belmarsh Case


[1] The Belmarsh Case, formally known as A and others v Secretary of State for the Home Department [2004] UKHL 56 is an important case study to explore some fundamental ideas of UK Constitutional Law. By definition, a constitution is ‘a body of fundamental principles or established precedents according to which a state or other organisation is acknowledged to be governed.’

The UK Constitution, while unwritten, is key to the legal system and nonetheless sets out the structure of the system. There are many laws surrounding important ideas such as the division of power and human rights within the Constitution. However, it has not been combined and noted down as such – in a sense the Constitution is not actually ‘unwritten’. 

The case came about following new legislation in response to the 9/11 terrorist attack at the World Trade Centre in New York, to take precautionary action against terrorism in the UK due to the close relationship between the US and the UK. These worries were not uncalled for as discovered in 2005 when the same terrorist group Al- Qaeda attacked London’s transport system.[2]  The UK Parliament enacted the Anti- Terrorism, Crime and Security Act 2001, the purpose of which was to provide greater legal powers in fighting terrorism through enhanced aviation, nuclear and biological security and extensive police powers in terrorism- related investigations. Part 4 of the Act was made to address the problems which arise when suspected terrorists cannot be dealt with in one of the two conventional ways i.e by prosecuting them in court or deportation. These options may not be viable if a) there is insufficient evidence to prosecute or the required evidence compromises intelligence sources and b) there is a real risk that deportation could result in torture or inhumane treatment, as the law does not allow this. The solution to this dilemma is one which hands over a great deal of power to the Home Secretary. If the Home Secretary reasonably believes a foreign national is involved in terrorism and could pose a threat to the nation, the person can be detained indefinitely. The fundamental right of personal liberty can be taken away from the minority in the interests of the majority.  

[3] The Belmarsh Case occurred because nine individuals threatened with deportation without trial, challenged the belief that they posed a threat to national security. They appealed the decision of the Special Immigration Appeals Commission and were subsequently detained pending deportation. The importance of the case can be accounted for by the direct challenge in court in terms of the decision’s compatibility with the European Convention on Human Rights , and the extent of power held by the executive is questioned. The necessity to limit personal liberty to protect national security was also questioned. 

The landmark decision made considered the provisions under which the detainees were held at Belmarsh Prison being incompatible with Article 5 of the European Convention of Human Rights, according to the House of Lords with a majority ruling of 8-1. Foreign nationals were being discriminated against as the law does not apply to state nationals. Despite condemnation by the Law lords, the Home Secretary was not required to release the prisoners. Further, they made a declaration of incompatibility under Section 4 of the Human Rights Act 1998.

According to Lord Bingham:

“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.”

“The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” 

The judiciary shows a will to check the powers exercised by the executive without political bias and using a just and fair approach, remarkably leading to the release of the detainees because of the combination of legal and political constitutionality in the UK. While the declaration of incompatibility does not bind the Home Secretary because of the equal status of laws passed by Parliament and the inability to override them, the UK is required to adhere to the ECHR wherever possible and if taken to Strasbourg Court the UK would inevitably lose. Furthermore, the political implications of the UK falling to meet the minimum Human Rights requirements pressurises the government into abiding by the Law Lords decision and eventually imposing control orders instead of detention of the suspects. 



[2] What About Law?- Catherine Barnard, Janet O’ Sullivan and Graham Virgo


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